Opinion
April 8, 1991
Appeal from the Supreme Court, Kings County (Hutcherson, J.).
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The general liability policy at issue was procured by the defendants third-party plaintiffs from Employers Insurance of Wausau. The third-party defendant was named as an additional insured under that policy.
In its first affirmative defense to the third-party action, the third-party defendant asserted that the third-party action was, in part, a subrogation suit brought against it by its own insurance carriers. The defendants third-party plaintiffs met their burden of demonstrating the existence of triable issues of fact by citing the employee exclusion provision of the policy. The third-party defendant countered with a claim of waiver and/or estoppel. Significantly, at no time prior to the time the underlying motions were made did any party seek a declaration of coverage. It cannot be determined, at this juncture, whether the third-party action is one brought by an insurer improperly pursuing subrogation against its own insured (cf., Pennsylvania Gen. Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465).
We further find that the determination as to whether the third-party defendant's first affirmative defense should be dismissed must await a judgment in the main action and the payment of the plaintiffs' award, if any. Bracken, J.P., Kunzeman, Sullivan and Rosenblatt, JJ., concur.